Benefits

Hi Jim,

          I've never done this before and my VSO is clueless! I am currently being treated by the VA for the Hep C virus with the new drug Harvoni.  I am genotype 1 and this drug has 98% success/cure rate.
 

If after treatment my viral load is undetectable or zero will the VBA reduce my combined rating of 80%?? I am 60 years old but have only been receiving SC benefits since December 2010. I was a Navy Corpsman and thus granted the SC for exposure to blood from 1979-1986.  I have read your other posts and the rating decision says "no future exams scheduled". Even if they get rid of this virus with Harvoni I will still have cirrhosis from the effects and deterioration of the Hep C virus over 20 years!

Reply:

You're entering uncharted territory. These new and super expensive drugs are said to cure Hep-C. The word "cure" isn't one that's used a lot when talking about Hepatitis but it appears they're really on to something here.
 

So...we can't be sure just what they'll do. However, with other "cured" diseases, like a service connected cancer, once the disease is no longer active or detectable, VA rates us on the "residuals" of treatments. For example, the residuals of prostate cancer might be incontinence, the residuals of a lung cancer might be shortness of breath and so on.
 

If I had to guess, I'd guess that Hep-C will be viewed the same way.  If it's no longer detectable, you'll be rated for any residual effects based mostly on how normally your liver functions. That's lab tests of course...there may be other lab values that come in to play...like kidneys.
 

Always keep in mind that when VA tells you that no future exams are scheduled they don't say they won't ever require an exam. They just say nothing is scheduled. The guys who develop the words VA uses are sneaky bastards. You have to understand their language.
 

I'd have to say that your first thought must be how lucky you are to have access to a cure. Having the disease in the first place is rough but now you can get fixed. So far as your benefits go, I'd advise that you leave the sleeping dog alone. If you go asking VA what they're going to do, they'll be more likely to open your file and try to modify your rating. As a rule, wait for VA to act before you stir anything up. They may never do anything.
 

If I were to guess, I'd guess that your benefits are safe over the long run. If VA did propose to reduce the benefit because you're 'cured', there's a lot of room to argue your side of that. It's not been an easy disease for you, I know...and that counts for a lot.
 

If they do notify you, let me know. I've wondered about this and you're the first guy I know of going through it. I'm interested in hearing the rest of your story as it unfolds and I know a handful of advocates, lawyers and doctors who'll also be interested.
 

Question:

I’m an Addiction Peer Support Specialist, and several of my clients who are veterans have been using Kratom, and they’re wondering if the VA urinalysis tests for this new drug?

Jim's Reply:

Kratom is a relative newcomer to the quasi-legal substance market in the United States. Elsewhere Kratom has been used for its sedative and pain relieving qualities for many years.
 

Derived from a plant source related to coffee, Kratom is said to relieve pain and enable users to avoid treatment with opiates although Kratom is itself said to be addictive and considered an opiate by many. Kratom is not currently illegal and since it's widely available and relatively inexpensive, more and more veterans are turning to the substance for relief of any number of symptoms.
 

The FDA lists Kratom as a drug of concern but has little else to say.
 

One reason for the favorable view of Kratom is that it's not detected on any standard drug screens. "Random" drug screens are often called 'panels' and may come in kits that test for 1, 4, 6 or more named drugs and of course the expense of the test increases with each additional drug screened. Since Kratom requires a rather fussy test in comparison, there is no reason to use it without a clinical reason.
 

The active substance in Kratom is mitragynine and while there are lab tests available for that, they are very specific and must be specifically requested by the ordering caregiver. So, no...VA is not testing for Kratom unless the caregiver has a very narrow reason to order that test.
 

It's worth sharing with your clients that VA doesn't care very much about substances the veteran ingests. There are no risks to disability or other benefits if the vet pops positive on any drug screen. If the veteran is currently prescribed opioids the prescriber may discontinue further opioid prescriptions or a mental health provider may DC competing substances but other than that, VA won't have anything much to say other than a referral to a rehab program.
 

I think it's also worth noting that for pain relief that isn't terminal (hospice/cancer) in nature, Ranger Candy (Ibuprofen 800 mg. tablets one every 6 or 8 hours) is as potent as anything else you can take unless and until you shift to the narcotics category. And since nobody gets a buzz off of Ranger Candy, (it won't get you high) and it isn't tested for, it's a much more effective medicine than Kratom.

VA prescribes huge free bottles of 800 mg. IB...I have one in front of me right now...it beats the unknown substances like Kratom for achieving the goal of pain relief.

Question:

Let's say a disabled veteran who already collects VA compensation gets a divorce. When it comes to USC, Title 38, §5301, the court NEVER took into account the difference in VA disability monthly payments from a disabled veteran that is a single (less amount) from a disabled veteran with children (higher amount). That difference is the only thing that should be treated as income and not the full amount, because the higher amount difference was meant to take care of the disabled veteran's dependent children. NOTE: Obviously, the amount is lessened when the VA compensation is lessened (income level) when the disabled veteran is no longer married, therefore it should apply to depend children as well.

Jim's Reply:

The 5301 theory you present has been floating around on the Internet for at least 15 years...that's how long I've been aware of the rumor. The thought process that 5301 protects you from paying some money to support your progeny is thoroughly debunked time and again. 
 

Veterans disability compensation is counted as income in divorce and every other means test I can think of. In this American Bar Association Fact Sheet, "Are VA benefits subject to levy, seizure or attachment?" you'll learn that your benefits are part of your income in divorce court. If you don't believe that, note that if you don't pay your court ordered support that the VA can and will take the money from you and give it to the obligee. 
 

If you have been ordered to pay child support and you disagree with that order, you are usually allowed to return to the appropriate court and seek a modification of the order. That very much depends on the state the court is located in and you should explore that with an attorney who is experienced in your state.
 

Unless and until you do this successfully, the best thing for you to do is appropriately parent your children and pay your share for their support. Arguing arcane legal theories on the Internet or worse...to a magistrate in a courtroom...isn't going to reduce your obligation and it takes away from time you could be parenting. Good luck.

Question:

Hi Jim. I have been rated 100% disabled since 2019. I live overseas in the Philippines. I go to VA Manila for my service connected disability. My questions are:  Are my minor children (ages 12, 10, and 8 yo) automatically enrolled for ChampVA? Does my spouse qualify for ChampVA if she is a non-citizen? Do my minor dependents pay premium for ChampVA? The VA has already approved my spouse and children as my dependents.

Jim's Reply:

You ask a very complex question. The only way I know of to get an accurate answer is to go ahead and apply for the benefits you seek. The application process will determine eligibility and if you run into any problems you may be able to resolve them then.
 

I'll offer a heads up on a couple of things as you proceed. Everything VA does is different in the Philippines. Over time I've run into impenetrable brick walls at the VA clinic there, when they deny a benefit that's often the end of it. And much the same applies to working with the CHAMPVA offices. They aren't exactly efficient and you'll have to be persistent in getting applications accepted and approved.
 

Go ahead and apply here. Be very thorough in completing all that's required and then be prepared to do it again. The benefit is well worth the effort it may take to confirm it. Good luck.

Question:

I was denied of caregiver although I am Vietnam vet with 100% disability, what’s my next step?

Jim's Reply:

Caregiver claim denials are usually provided with instructions on how to appeal. Read your paperwork very carefully to learn how to appeal at your institution. Caregiver claims are processed locally and appeals are made to the administration of your VA health services provider. Good luck.

Question:

I am service connected for severe pest planus (30%) and OSA (50%). I have conducted research as I now suffer and have for a long time, depression and anxiety. I have found that OSA leads to both depression and anxiety. I learned that Hypertension is also caused by OSA. This is scary, but is it something the VA usually finds as secondary to OSA? Of course I have started my claim and have spoken to specialists, but I wanted to know if you had any experience with this?

Jim's Reply:

"is it something the VA usually finds as secondary to OSA?"

No.

While there are plenty of reasons to believe that OSA may influence or cause other conditions (a sort of cascade effect) VA won't simply accept your word for that. You need an Independent Medical Opinion (IMO) written by an expert to support the secondary cause you claim. You can read more about the IMO here. 

Prior to filing a claim for secondary conditions I usually will suggest that the veteran research how others have won...and lost...such appeals for higher ratings. The Board of Veterans Appeals maintains a very useful search engine that helps a lot. If you'll enter your search terms into the required places and choose a year or two, you'll see results of others who have gone before you.

BVA cases are not precedential so you can't cite the results of what you find, you must duplicate the steps you find if you find a case similar to yours that prevails. Good luck!

Question:

Can you have passive income like renting part of property out? Will it affect a rating of TDIU?

Jim's Reply:

Yes, you may have passive income with some restrictions. This can get really complex in a heartbeat but in broad terms, you are allowed income that isn't derived from gainful employment. Gainful employment is generally described as that work that earns you a taxable income of more the the federal poverty level. You can rent out a piece of property and unless it's a part of a business you run and derive an income from, no problems.

This is also true of income like inheriting a fortune from your poor Aunt Tillie when she passes and leaves her vast wealth to you or winning the Lotto. Neither of those are gainful employment and won't affect your TDIU rating. 

There is no form to complete or any reason to seek permission to earn a small income. VA tracks your taxable income by associating your VA file with your IRS and SSA data so if your taxable income from gainful employment rises to more than the poverty level, VA will be in touch with you to offer a solution. Good luck.

Question:

Jim, thanks again for your devotion to this and, of course, your service. I’m 100% temp disabled, Agent Orange - Prostrate Cancer. When and if the VA lowers my rating and I present evidence that there is cancer, do the payments reflect the time from lowering the rating until reinstatement of 100%. I just had my 6 month exam and am delaying biopsy until October. PSA dropped very slightly. How and why does the VA get away with this?

Jim's Reply:

The Vietnam veteran who has an active prostate cancer is rated at 100% disabled with a temporary rating. There is no particular logic to this since prostate cancer in and of itself isn't disabling. The fact is that if it weren't for a vague and unreliable blood test (The PSA) most men wouldn't know they had prostate cancer until they died of something else.
 

That's one of the reasons so many of us choose to skip treatments and die with the cancer...not of the cancer. Watchful waiting seems to be the way to go for many.
 

So if you treat the disease that isn't causing you to feel ill and gets you a 100% rating, after treatment you're going to feel worse with residual effects of therapy and then your rating will drop. The rating will fall to 60%, 40% or 20% depending on how many pads you use each day to collect leaked urine. Six pads will be 60%, etc.
 

If you show that cancer is still active after treatment, your rating will remain at 100%. But you will have to provide a definitive statement from a physician that "it is more likely than not" that your cancer is still active. If your PSA drops at all after treatment, that's a cure in VA terms.
 

Here's my own view...I'm 72. My PSA has steadily, slowly climbed over the last 10 years. There is nothing alarming and it has yet to rise to 10. I have an MRI of my spine that includes a glance at the prostate that shows a tiny nodule. Nobody is able to feel the nodule. I'm not a Vietnam vet so a 100% rating doesn't influence any of my thinking. 
 

I have declined any number of offers to do a prostate biopsy. A slow climb in PSA is anticipated in a 72 year old. Nobody can detect my (questionable) nodule. My last PSA sowed that it dropped by almost 2 points...all without benefit of a biopsy. If I have cancer, I'll die with it, not of it.
 

"How does VA get away with this?", you ask. Because it's the VA is the only answer I can provide.
 

Any time you engage VA you can anticipate outmoded technology and early 20th century thought processes. The ratings schedule was built in the 1940s and hasn't been adequately revised since. Good luck!